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TaxTMI 
TaxTMI 
TaxTMI 
2026 (4) TMI 881
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.....07.2025 for clearance of the same. During the examination on first-check basis, it was observed that the appellant did not have an import authorization issued by DGFT and the registration with Bureau of Indian Standards. Chartered Engineer, who examined the cargo reported that the impugned goods were multi-functional devices that combines several functions into one device and are not covered under HSE. The impugned goods were seized on 14.08.2025 on the reasonable belief that they are liable for confiscation. The appellants requested for provisional release of the impugned goods vide letter dated 15.08.2025, which was rejected by the original authority vide order dated 15.09.2025. The order of the original authority was upheld by the impugned order. Hence, this appeal. 3. Shri Saurabh Kapoor, learned counsel for the appellants, assisted by Ms. Muskaan Gupta and Ms. Tanya Kumar submits that: * The CRO 2012 refers to prohibition for import of goods without compliance to the Registration with BIS; the impugned goods having been specifically exempted (exempting HSE) are not subject to registration with the BIS. * For the purpose of import and classification the sa....
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.... W.P. No.2014 and 843 of 2024 (Telangana HC), Simple Machines - (2024) 14 CENTAX 68 (Mad.) (Madras HC), Taanish Enterprises - W.P. No.29418 of 2024 (Madras HC), Unistar Enterprises- WRIT Tax No.1981 of 2025 (Allahabad HC), Genuine Copier Systems- W.P. No. 28241 of 2025 (Madras HC), Atul Automation- 2019 (365) ELT 465 (SC) affirmed by SC SLP (C) 13560/2024, Principal Commissioner, Kolkata (Provisional Release order) & P & H High Court (CWP 28333/2019; CWP 12962/2021), it was held that provisional release can be given in respect of goods involving identical allegations. 6. Shri Anurag Kumar, learned Authorized Representative for the Department reiterates the findings of the impugned order and submits that the appellants failed to fulfill the conditions of obtaining DGFT authorization and BAS registration and thus, the imported goods are prohibited in terms of Section 2(33) as they are subjected to prohibition under any law; Hon'ble Supreme Court in the case of Om Prakash Bhatia - 2003 (155) ELT 423 (SC) held that restriction subject to conditions if not fulfilled renders the goods prohibited. Learned AR further submits that the exemption claimed by the appellants under S.O. 2844 (....
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.... (v) In the case of Unistar Enterprises, Hon'ble Allahabad High Court directed the authorities to decide the application of the appellant for provisional release whereas in the instant case, the application for provisional release was considered and rejected. (vi) Learned Commissioner (Appeals) has rightly observed that he is not obliged to follow the order dated 03.06.2025 passed by Additional Commissioner, Kolkata. (vii) The case of Atul Automation Pvt. Ltd. (Final Order No.77912-77915/2025 dated 16.12.2025) by CESTAT, Kolkata is distinguishable on facts as the issue therein related to the cap on the import of machines more than 100 per unit model. 9. Learned Authorized Representative further relies on City Office Equipment - 2019 (367) ELT 920 (Mad.) and Best Mega International - 2021 (377) ELT 721 (Mad.) and pleads that the appeal needs to be summarily dismissed. 10. In rebuttal, learned counsel for the appellants submits that both the cases are wholly distinguishable on facts and hence cannot be applied to the present case; in case of Best Mega International (supra), the orders are interlocutory and hence have no precedential value; it was rendere....
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....We find that learned counsel for the appellants submits that in many cases, it was held that non-compliance of Para 2.31 of FTP or CRO 2021 is not a bar to provisional release. 13. We find that Principal Bench of CESTAT, Delhi, in the case of Tasha Gold Pvt. Ltd. vide Final Order No.A/51595/2023 dated 05.12.2023, held that: 13. The Appellant relied on the judgment of the Hon'ble High Court of Delhi in Additional Director General (Adjudication) v. Its My Name Pvt. Ltd., 2021 (375) E.L.T. 545 (Del.) wherein it was held that Para 2 of Circular No. 35/2017 is contrary to the parent statute - Section 110A of the Customs Act and is void. 14. The Appellant placed reliance on the judgement of the Hon'ble High Court of Bombay in Sidharth Vijay Shah v. Union of India, 2021 (375) E.LT.53 (Bom.) in which it was held that no limitation was imposed in Section110A that goods categorized as prohibited goods under Section 2(33) cannot be subjected to provisional release under Section 110A. It was also held that even filing of appeal before Hon'ble CESTAT cannot be a bar on order of provisional release. 15. It was submitted that adherence to the said Circula....
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....ods, documents or things seized under section 110, may, pending the order of the [adjudicating authority], be released to the owner on taking a bond from him in the proper form with such security and conditions as the 4 [adjudicating authority] may require]" 14. In the context of this provision, Circular No. 35/2017-Customs has already been considered by a Coordinate Bench of this Court in Additional Director General (Adjudication) v. Its My Name Pvt. Ltd. [2021 (375) E.L.T. 545 (Del.)]. In the said decision, the Court has categorically held that the said circular goes beyond the provision and is, therefore, a void circular. The relevant paragraph of the said decision is set out below: "51. The learned ASG also placed pointed reliance on Circular 35/2020-Cus supra, issued by the CBEC, para 2 of which absolutely proscribes provisional release of "goods prohibited under the Customs Act, 1962 or any other Act for the time being in force", "goods that do not fulfil the statutory compliance requirements/obligations in terms of any Act, Rule, Regulation or any other law for the time being in force; and "goods specified in or notified under Section 123 of the Customs Act....
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....ned Circular to the extent it curtails the discretion accorded to the adjudicating authority is set aside as being contrary to the Customs Act. 8. The impugned order is set aside and the petitioner's application for the provisional release of the goods is restored before respondent no.6. 9. Considering that the goods involved are perishable, respondent no.6 is directed to decide the matter afresh and pass a speaking order within a period of four working days from date after hearing the petitioner. 10. The petitioner shall appear before respondent no.6 on 11.12.2023 at 10:30 a.m. 11. The pending application is also disposed of. 16. Under these circumstances, this Court is of the view that provisional release could not have been completely prohibited by the Customs Department. The Show Cause Notice (hereinafter, 'SCN') is stated to have already been issued by the Customs Department. In a recent decision of the Telangana High Court, in W.P. No.2014/2024 titled Arka Business Solution v. Superintendent of Customs the Court has permitted release of similar goods on the following terms: "Petition under Article 226 of the *constitution ....
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....ision Bench of this Court, that demurrage charges till date for the goods was directed to be considered for waiver. In this regard, if any application is filed by the petitioners seeking such a waiver of demurrage charges, the same shall be considered and decided by the respondents objectively. No costs. W.M.P.Nos.28415 and 30149 of 2023 are ordered and the other writ miscellaneous petitions are closed." 15. We find that the respondents rely on the cases of Best Mega International and City Office Equipment (both supra). As regards the reliance on Best Mega International, the appellants submit that said decision was rendered in the context of the old regulations under CRO 2012 and that subsequent to the above decision, Hon'ble Supreme Court has allowed provisional release, in the case of Delhi Photocopiers - 2022 (380) ELT 471 (SC), holding that provisional release can be permitted even in cases where the department asserts that the goods are prohibited and are liable for confiscation. They further submit that the case of City Office Equipment is not applicable as in that case, no seizure was involved, the observations therein were mostly on the issue of writ jurisdiction and thi....